The Claimant was employed as a Maintenance Engineer by the Respondent
food processing company. Following a heart attack, he returned to work
on full pay, working about 50% of his normal hours. His employer
asserted that this was a 'non-job', he was productive for only 20% of
his time, and his duties were covered by his colleagues and an agency
worker. His claims, including unfair dismissal and disability
discrimination, were upheld. The employment tribunal found that he would
have worked 70% of his hours for a further 39 weeks, although there was
a 20% chance he would be fairly dismissed within that time.

The employer's appeal was upheld. Whilst it was not wrong for the
employment tribunal to engage in the speculative assessment that he
would increase his hours from 50% to 70%, they had to engage with the
evidence before them. It might have been a legitimate conclusion but
they had to spell out their findings. The finding that he would not
return to work full-time fed into the prospect that he might have been
fairly dismissed, bearing in mind the duty to make reasonable
adjustments. These conclusions were not necessarily perverse but the
employment tribunal would need to set out their findings clearly. The
matter was remitted to the same tribunal to consider these matters.

Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.

Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.